2007 (7) TMI 501 - AT - Central Excise

Summary

Issues involved:
The rejection of a refund claim for duty paid under protest on goods cleared during a specific period due to inclusion of secondary packing charges in the assessable value, the application of the bar of unjust enrichment, and the finalization of provisional assessments leading to the refund claim.

Refund Claim Rejection and Unjust Enrichment:
The appeal was filed against the rejection of a refund claim for duty paid under protest on goods cleared during a certain period, specifically related to secondary packing charges included in the assessable value. The claim was made following a Supreme Court judgment in the appellant's own case that secondary packing charges should not be included in the assessable value. The original authority rejected the claim citing unjust enrichment and directed the amount to be credited to the Consumer Welfare Fund. The party's appeal against this decision was also dismissed by the Commissioner (Appeals). However, the Tribunal noted that the assessments were provisional before being finalized, and the claimant argued that there was no requirement to formally claim a refund after finalization of provisional assessments. Citing relevant case law, the Tribunal held that the bar of unjust enrichment should not apply in this case, as the assessments were provisional and the claim was based on finalization of these assessments.

Provisional Assessments and Unjust Enrichment:
The Tribunal considered the argument that the plea of provisional assessments was not raised earlier and that the original assessments were final regarding secondary packing charges. However, the claimant contended that the assessments should be deemed provisional for all purposes based on previous case law. The Tribunal agreed with the claimant, stating that the assessments must be considered provisional for all purposes, and therefore, the bar of unjust enrichment under Section 11B of the Central Excise Act should not be applicable to the refund claim, which arose from the finalization of provisional assessments made before a specific rule amendment.

Decision:
Based on the arguments presented and the case law cited, the Tribunal set aside the impugned order rejecting the refund claim and allowed the appeal. The Tribunal held that the assessments were provisional for all purposes, and therefore, the bar of unjust enrichment should not prevent the refund claim from being accepted. The operative portion of the order was pronounced on a specific date.